Skynet copyright law – watch this space

The controversial piece of legislation seeks to provide copyright owners with an easier way to penalise people who are infringing their copyright through online file sharing – either uploading or downloading material to the internet.

Simon Fogarty, an intellectual property litigation specialist and senior associate with A J Park, explains some of the basics of the law, which has implications for both copyright holders and internet users.

What does this legislation actually do?It gives copyright owners a more accessible way of pursuing people who infringe copyright over the internet. It doesn’t give them any new claim to copyright infringement, as far as the legislation is concerned, someone still has to infringe copyright, it just means they don’t have to go through the courts to pursue the infringer.

What constitutes an infringement under this legislation?Under the Act, someone has to reproduce a substantial part of another person’s copyright work, then the question is whether the copy and the original are objectively similar. In the case of this legislation, when people are copying music tracks or films, which seem to be the two key items that this legislation will catch, basically a person will infringe copyright if they download a song, or download a film, or part of a song or film, and it probably wouldn’t have to be very much if it’s an exact copy to infringe copyright. Someone who copies or downloads a track without authorisation, that would be an infringing copy.

What do copyright holders need to do?Copyright owners, the first thing they have to do is they have to identify there’s been an infringement, and they have ways of doing that by using specialist software and so on. Once the copyright owner has enough information to identify there has been an infringement, the [warning or infringement] notice goes to the ISP and they then pass it on to the account holder [of the IP address where the infringement occurred]. So it’s not actually the person who is doing it, if you’ve got a teenage child or someone like that is downloading and you’re the parent with the account, then the notice goes to you as the account holder.

So the same applies if you’re a business owner with a shared network or wifi?That’s one of the interesting things that came out. It’s a difficult question for universities, libraries and educational institutions to deal with, because they, as the account holder, have to take responsibility for all those users. The same applies to lots of cafes that, for example, have free wifi. If someone logs in and downloads a song illegally, then the cafe would be the party that would get the warning notice and in that situation it’s impossible to track down who the user is.

What impact has the legislation had so far?Originally, when it first started, the ISPs noticed a drop off in traffic in terms of their bandwidth use, which they assumed was caused by the new law. The first notices weren’t issued until [late October]. It seems that what they have done, because there’s a $25 fee for each notice they have to issue, they’ve done a little bit of a targeted exercise and picked [artists] that were being downloaded more frequently.

My suspicion is they’re going to use that as a little bit of a test and see what happens before they contemplate launching a lot of notices. You’re probably only talking about 30 or 40 notices that have been issued, when a lot of people were saying, oh, there’ll be thousands of notices issued, the ISPs won’t be able to cope with the requirements of sending them all out, and actually the day came and it was all very quiet.

It seems like it’s going to be a long time before anything gets to the Copyright Tribunal and there’s actually a hearing on it that gives us a better feel for how the tribunal’s going to operate, so it’s watch this space.